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TMI Blog2019 (2) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial or Industrial Construction Service. After due process of law, the original authority confirmed the demand along with interest and imposed penalties. In appeal, the Commissioner (Appeals) upheld the same. 2. On behalf of the appellants, the learned counsel Shri P. Saravanan submitted that the period involved is from 2005 to 2008. The appellants had constructed buildings for use as hospitals and, therefore, the activity cannot be considered as Commercial or Industrial Construction Services. It is clarified by the Board's by its circular dated 17.09.2004 that only constructions, which are for commercial purposes, would be subject to service tax. Since the buildings are used solely for health purpose as hospitals, the same have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature are not leviable to service tax prior to 01.06.2007. Following the same, we are of the opinion that the demand prior to 01.06.2007 cannot sustain and requires to be set aside, which we hereby do. 6. In this appeal, part of the demand falls after 01.06.2007 and the demand has been made under Construction of Complex Service. The Tribunal in the case of M/s. Real Value Promoters Pvt Ltd., (supra) had discussed in detail the leviability of service tax on composite contracts under the category of CCS/CICS/ECIS for the period after 01.06.2007. The Tribunal therein had observed that after 01.06.2007, the demand for such composite contracts can attract the levy of service tax under the category of Works Contract Services only. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in many numbers of cases to set aside the demand of service tax on services like commercial or industrial construction service, construction complex service etc. involving composite contract of both material supply as well as service element prior to 1.6.2007. In the present appeal also, there is no dispute that the construction activities are in the nature of composite works contract. The appellants being involved in the construction of the same projects prior to and after 1.6.2007, for example, even in the show cause notice dated 20.10.2009 (relating to Appeal No. ST/723/2010), taxable value has been calculated at 33% of gross amount received which is an implicit admission that that activity involved both material supply a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned orders. On the contrary, being composite works contracts, they will necessarily fall within the ambit of works contract service as defined under section 65(105)(zzzza) ibid. It is possibly with this intent in mind that the lawmakers have included in the definition of works contract, erection and commissioning service, commercial or industrial construction service, construction of complex service and in addition turnkey projects including EPC projects within the definition of Works Contract Service. At this juncture, it is worthwhile to reproduce excerpts from the Union Finance Minister's budget speech in 2007: - "State Governments levy a tax on the transfer of property in goods involved in the execution of a works contract. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplex etc. are of special nature. He took support of the maxim 'generalia specialibus non derogant' - 'general things do not derogate special things'. The counsel for appellants have submitted that as per Section 65A of the Act ibid, classification of service shall be based on the specific entries and the more specific description of service has to be preferred. He invited our attention to CBEC's Circular 128/10/2010 dated 24.8.2010 which is reproduced as under: - "The matter has been examined. As regards the classification, with effect from 1-6-2007 when the new service 'Works Contract service' was made effective, classification of aforesaid services would undergo a change in case of long term contracts even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion service' under Section 65(105)(zzzh) ibid, 'Construction of Complex Service' under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services' simpliciter. c. For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under 'Works Contract Service' as defined under section 65(105)(zzzza) ibid. d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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